disregard unimpeached and uncontradicted testimony, and neither can the master. The court below committed no error

in setting his recommendations aside. The judgment of the district court should be affirmed.

[No. 734. October 2, 1897.]

JOSEPH BARNETT, Appellant, v. BESSIE BARNETT, Appellee.

HUSBAND AND WIFE-ACQUEST PROPERTY.-In the absence of any statute of this territory ascertaining the rights of husband and wife, after legitimate separation and during the lives of both, to the property acquired during the coverture, and of any change in the Spanish law as to such property under such status, that law upon the subject, in force at the date of the treaty of cession, must govern ID. COMMUNITY PROPERTY-RIGHTS OF WIFE-FORFEITURE.-While, under the Spanish law, the wife is entitled to one-half of the acquest or community property on the death of her husband, by commission of the act of adultery she forfeits that right.

ID. PROPERTY RIGHTS-DECREE OF DIVORCE-RES ADJUDICATA.-A decree divorcing husband and wife bars any subsequent action by either against the other to enforce any right growing out of the marital relations.

Appeal, from a decree for complainant, from the Second Judicial District Court, Bernalillo County. Reversed and remanded, with directions.

The facts are stated in the opinion of the court.

CHILDERS & DOBSON for appellant.

Under the Mexican and Spanish law the wife had no vested interest in the community property until a dissolution of the marriage community. Packard v. Arellanes, 17 Cal. 539; Ball on Com. Prop., secs. 32-35; Schmidt's Civil Law,

art. 51; App. to Ball on Com. Prop. 396; Van Moren v. Johnson, 15 Cal. 308; Platt on Prop. Rights of Married Women, sec. 38.

Under the Spanish and Mexican law the wife by adultery forfeited all interest in the community property. The widow likewise forfeited her portion of the matrimonial gains by leading a dissolute life. Schmidt's Civil Law, 396-398, secs. 55, 61-68,

The Spanish and civil law is in force in this territory at the present time with reference to the respective parties upon a dissolution of the marriage relation; and the acts of 1889 with reference to "Descent and Distribution" relates to settlement of community rights where the marriage is dissolved by the death of one of the spouses. In re Buchanan's Estate, 8 Cal. 507.

The decree rendered in favor of the husband, granting him a divorce from the wife, is res adjudicata as to her property rights in the community property. Cromwell v. Soc. Co., 94 U. S. 351-358; 21 Am. and Eng. Ency. of Law, 220; Chouteau v. Gibson, 76 Mo. 38; Bryan v. Kennett, 113 U. S. 179; Roe v. Roe, 35 Pac. Rep. 808; Thompson v. Thompson, 31 N. E. Rep. 529.

PATTERSON & WALLACE and JOHNSON & FINICAL for

appellee.

While they differ in some minor respects, the principle underlying the various statutory adoptions of the civil law in relation to the community system in the several states and territories is the same, viz.: the equal sharing of husband and wife in the property acquired during the marriage. Ball. Com. Prop., sec. 36; Edwards v. Brown, 4 S. W. Rep. 380; Kircher v. Murray, 54 Fed. Rep. 617.

By the Laws of 1876, Comp. Laws, 1884, sec, 1823, the common law was adopted as the rule of practice and decision in this territory. Browning v. Browning, 3 N. M. 675; Walker v. R. R. Co., 165 U. S. 17 Sup. Ct. 125.

If the legislature of New Mexico had enacted that part of the community system which deprives the wife of her portion of the acquest property if she commits adultery, it would be contrary to the constitution of the United States as depriving her of her property without due process of law. Const. U. S., 5 Amend.

See, also, Godey v. Godey, 39 Cal. 157; House v. Williams, 40 S. W. Rep. 414; Hensley v. Lewis, 17 Id. 914; Ball. Com. Prop., secs. 202, 209.

It seems now to be universally held that the property rights of the spouses may be determined after divorce has been granted, where the decree granting the divorce is silent on that question. Ball. Com. Prop., sec. 209; Whetstone v. Coffee, 48 Tex. 276; Harvey v. Cummings, 5 S. W. Rep. 513; Edwards v. Brown, 4 Id. 380; Grattan v. Weber, 47 Fed. Rep. 850; Godey v. Godey, 39 Cal. 157; House v. Williams, supra; 17 Am. and Eng. Ency. of Law, 693; Ross v. Ross, 26 Pac. Rep. 1007; Kirchner v. Dietrich, 42 Id. 1064. See, also, Lessee of McCall v. Carpenter, 18 How. 297; Packet Co. v. Sickles, 5 Wall. 580.

SMITH, C. J.—This is a suit brought by Bessie Barnett against Joseph Barnett for a partition or division of all real and personal property standing in the name of or owned by appellant, and alleged to be community property, and acquired during the marriage relation formerly existing between the said parties. The said appellant procured a divorce from appellee on the fifth day of November, 1894, and this suit was brought on the thirteenth day of January, 1896. Said bill of complaint alleges that appellant and appellee were married on or about the tenth day of August, 1891; that, at the time they were married, the appellant possessed and owned no property by inheritance, donation, or legacy during the existence of the marriage community, but that they did acquire a large amount of property, both real and personal, by their joint and separate efforts and labors, as set forth and described in the bill of complaint, and alleges that all said

property is acquest and community property, and that appellee is entitled to one-half interest in and to the same. Appellant filed a demurrer to the said bill, which was overruled, and thereafter appellant filed an answer, and referred to and made the pleadings in the divorce suit a part thereof, and denied that the appellee was entitled to any interest in either the real or personal property. Issue was joined, and Ad. H. Wycoff was appointed special master to take the testimony therein, and report the same to the court, with his opinion thereon. Thereafter appellee asked leave to amend her bill of complaint, alleging the date of her marriage to appellant in 1887, instead of 1891, which leave was granted, and thereafter defendant and appellant filed an amended answer. After the evidence was taken, the master made his report, sustaining the allegations in the bill of complaint, finding in favor of complainant and appellee, and that the property, real and personal, owned and possessed by appellant, was acquest and community property, and found the value of the real estate to be $13,250, and the personal property of the value of $7,500, and that appellee was entitled to one-half of the same, together with the further sum of $175, for money borrowed by appellant from appellee. Exceptions to said master's report were filed, and by the court overruled, to the overruling of which defendant excepted, and still excepts. Final decree was rendered, and appellant prayed an appeal, and gave a supersedeas bond to stay execution of said decree.

Assignments of error: "Now comes the appellant in the above entitled cause, and assigns as errors committed by the court below the following, to wit: (1) The court erred in overruling defendant's demurrer to the bill of complaint therein. (2) The court committed error in approving the findings of law contained in the master's report. (3) The court committed error in approving the findings of fact contained in the master's report. (4) The court committed error in overruling the appellant's exception to the master's findings of law and fact. (5) The court committed error in holding that the decree divorcing the appellant from the appellee was

not a complete bar to any claim of property rights made under the bill of complaint filed in this case. (6) The court committed error in refusing to hold that the appellee having been adjudged, in the decree rendered in the suit for divorce, guilty of adultery, such fact did not forfeit all her rights in the property belonging to the marriage community thus dissolved. (7) The court committed error in holding that the appellee had any rights in the property belonging to the said marriage community which she could enforce prior to the death of the husband."

HUSBAND and wife: acquest property: law governing.

It will not be contended that the appellee became vested with any separate interest under the common law in the property of the appellant acquired during their coverture, and it is not less assured that there is no provision made for her during his life as to such property by any statute of the territory. Chapter 90 of the Acts of 1889 is "An act to amend the laws relative to the estates of deceased persons," and directs that "one-half of the acquest property which remains after the payment of the common debt shall be set apart to the surviving husband or wife absolutely." It is manifest that this distribution is derived from the Spanish law, and it may be that the limitation as to the time of the operaton was suggested by the same code. It is consequential, therefore, that, if any laws have obtained here disposing (during the life of husband and wife) of the property accumulated by them during the continuance of their marriage relation, they are those of Spain and Mexico, as they existed, concerning descents, distributions, wills, and testaments, when this territory became a part of the United States. In 1846 the following announcements were promulgated by Kearney in his Code: Kearney's Code, p. 82, sec. 1. (September 22, 1846): "All laws heretofore in force in this territory, which are not repugnant to or inconsistent with the constitution of the United States, and the laws thereof, or the statute laws in VOL. 9 N. M.—14